The conundrum of causality and the criminal law (sexual offences and related matters) Amendment Act 32 of 2007 : a critical analysis

Abstract:

South Africa is a country plagued by sexual abuse, and particularly sexual violence. In every local newspaper, everyday, there are numerous articles detailing the egregious humiliation suffered by victims of sexual violence at the hands of their attackers. Whilst the social causes of such ills remain an illusive hypothesis buried deep within the reams of academic literature, the unresponsive and patriarchal laws criminalising such conduct have not. On 16 December 2007, the President signed into law the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. The Act sought to provide an enabling environment that reconciled the criminal justice system with the experiences of the victims by introducing a plethora of devices to prevent secondary victimisation and to acknowledge and appropriately criminalise various forms of sexual violence. Unfortunately the transition to this modernised sexual offences system has not proved to be a smooth one, with the Act having to overcome many an obstacle in achieving its aims and objects. The study undertaken focused on two particular aspects of import in the Act, namely whether the Act had abolished the formal nature of the offence of rape and the scope and application of the new statutory offence of compelled rape. The latter was particularly relevant in order to ascertain whether the legislature had provided a panacea for scenarios where the perpetrator procured an unwilling and innocent agent to commit the rape. In order to provide a palpable understanding of what the legislature envisaged through the enactment of these two independent offences the study mapped the development of the interests sought to be protected through the introduction of criminal sanctions for sexual offences. This mapping culminated in an understanding, from which the study of the statutory offences departs, that sexual offences must be balanced and weighed against the precepts of rights. Moreover that any interpretation of such statutory offences must promote and uphold the rights violated in order for the Act to meet its aims. The focus of the study was thereafter shifted to a deconstructive analysis of the statutory offence of rape and compelled rape. Through such focused analysis, the study sought to ascertain whether the formal nature of rape - which existed at common law - had been abolished by the legislature. It proposed that should such interpretation prove to be correct, that the offence of compelled rape had been inserted by the legislature either superfluously alternatively ex major cautela. The study thereafter turned to the offence of compelled rape, with particular attention being paid to whether the offence effectively criminalises the conduct identified throughout the study as the ‘innocent perpetrator’ to rape, and whether the offence effectively upholds the rights of the victims. Through such exercise the study concludes in constitutionally compliant interpretations which provide solutions for much of the intellectual discomfort that has plagued the creation of the two independent statutory offences.